The purpose of this article is to share the authors' experiences as educators and
coaches to teams in the Willem C. Vis International Commercial Arbitration Moot (the
'Vis Moot' or 'Moot'). We first had the opportunity to work with a team in the Tenth
Vis Moot and quickly discovered that this particular Moot provided a variety of unique
educational opportunities for our students and our institution. Over the four years that
we have served as coaches,[1] we have developed a few ideas for making the most of
these educational opportunities that we thought might be valuable to other coaches and
teams participating in the Moot -- especially to teams that might be [page 173]
relatively new to the Moot. While our own personal experiences relate most directly to
working with students within the context of law schools based on the US common law
model, we have also spent significant time interacting with other coaches and teams
from around the world. We hope that our own ideas and experiences, as further
developed and described in this article, may be useful to coaches and teams from other
countries and other legal systems as well.

Professor Eric Bergsten, the organiser of the Moot, has written a variety of articles
providing an excellent overview and historical background of this extraordinary
gathering of law students, law school faculty members, and practitioners from around
the globe,[2] and the authors will not attempt to recreate that material here. Instead, this
article will focus primarily on certain unique features of this particular Moot and discuss
how these features give rise to unique opportunities to maximise the overall pedagogical
benefit to be derived from an educational institution's participation in the Moot.[3]

For some institutions, the cost of participating in the Moot may exceed that of other
moots. For example, schools outside of Europe will find the travel costs higher than
those typically associated with domestic moots. As such, it may be important to these
institutions that the Moot provide a substantially greater educational benefit than other
moots, commensurate with these greater costs of participation. In this article, the
authors hope to demonstrate that this Moot can indeed provide educational and
institutional benefits commensurate with, or even beyond, its costs and will offer
suggestions as to how those benefits might be maximised.

Part 2 of the article provides a general overview and introduction to the broad
educational benefits of the Vis Moot, as well as the interaction between the [page 174] pedagogical and competitive elements of the Moot. Part 3 then addresses certain
specific educational opportunities provided by this particular Moot. This part is broken
down into two primary segments: Part 3.1 -- the educational process that takes place
prior to the completion of the memoranda; and Part 3.2 -- the educational process that
takes place after the completion of the memoranda. In each, the authors provide
suggestions, based on their own experiences, for maximising the educational benefits of
the Moot. Part 4 concludes with a discussion of the relationship between the
pedagogical and competitive elements of the Moot in the context of these suggestions
for maximising its educational benefits. The authors suggest that the Moot's pedagogical
and competitive elements are entirely consistent and mutually supportive.

This article focuses primarily on the Moot as a pedagogical tool. However, one might reasonably ask at the outset whether this is in fact the primary purpose of the Moot.
The Moot actually represents a competition between teams of students from individual
law schools,[4] as well as a competition between individual law students,[5] and one
might reasonably suggest that this competitive purpose predominates. This question has
been explored thoroughly in a previous article by Professor Jeffrey Waincymer, who
makes an excellent case for the predominance of pedagogy over competition.[6] The
authors agree with the majority of Professor Waincymer's general conclusions and will,
therefore, limit the discussion here to a few of his points. This article will begin by
looking, generally, at the educational benefits of the Moot.

Skills training has become an increasingly important part of legal education, and
mooting, generally, would seem to encompass many of the fundamental skills necessary
for a prospective lawyer. The MacCrate Report, produced by an American Bar
Association Task Force on Law Schools and the Profession, identified ten fundamental
lawyering skills: (1) problem solving; (2) legal analysis; (3) legal research; (4) factual
investigation; (5) communication; (6) counselling; (7) negotiation; (8) familiarity with
comparative litigation and alternative dispute resolution processes; (9) organisation and
management of legal work; and (10) [page 175] recognition and resolution of ethical
dilemmas.[7] Virtually all moots would seem to address some of these skills.[8]
However, the Vis Moot addresses almost all of them.

As with most moots, the Vis Moot requires students to engage in (1) problem solving;
(2) legal analysis; and (3) legal research in attempting to develop their arguments on the
issues arising out of the problem.[9] In the case of the Vis Moot, they do so for both
sides of the argument -- advocating the positions of both claimant and respondent in
their written and oral submissions and thereby expanding the educational
opportunity.[10] Unlike most other moots,[11] the Vis Moot requires the students to
engage in detailed factual analysis and even allows for (4) factual investigation or
discovery in the form of requests for clarification.[12]

Students in the Vis Moot generally work in teams, some of which may include many
students.[13] Working as part of a larger team requires (5) effective communication
between team members, as well as (9) organisation and management of the work by
individual team members.[14] Effective communication is also of course, crucial to
effective written and oral advocacy skills;[15] each of which the students will have the
opportunity to develop while participating in the Moot. The Vis Moot's focus on [page 176] arbitration exposes students to a form of (8) alternative dispute resolution [16] --
one used increasingly in both domestic and international commercial transactions and
sometimes overlooked in the traditional law school curriculum. At least one Vis Moot
problem has presented students with the (10) ethical dilemmas faced when the
impartiality and independence of an arbitrator is challenged.[17]

In addition to practical skills training, the students have an opportunity to develop their
doctrinal knowledge and understanding of international sales law and international
commercial arbitration. The Moot has always been intended to promote awareness of
the United Nations Convention on Contracts for the International Sale of Goods (the
'CISG') and the work of UNCITRAL (including its work in the area of international
commercial arbitration) [18] and, as such, provides an outstanding educational
opportunity in these two important and developing areas of doctrinal international law.

Moreover, the Vis Moot provides this educational opportunity in an international
environment. Students are encouraged to employ a comparative perspective in their
analysis and advocacy. Through this comparative approach, students arguably gain a
better understanding not only of other legal systems, but of their own as well.[19]
Teams are also paired up in the preliminary rounds so that they meet only teams from
other countries,[20] and this means that each team will also prepare a written
memorandum on behalf of the respondent that is responsive to a memorandum
prepared by a team from another country.[21] In short, the Moot provides an
outstanding introduction to the practice and theory of international commercial law and
dispute resolution.[22]

Assuming that one accepts the basic premise that mooting, generally, serves a strong
pedagogical purpose, and further agrees that this particular international Moot focused
on commercial law and arbitration provides additional pedagogical values, we might
nonetheless return to our original question about pedagogy versus competition as the
Moot's predominant purpose or value. In the case of this particular Moot, one might
reasonably ask. 'Are pedagogical and competitive values necessarily inconsistent?'
Professor Waincymer acknowledges that the two values or goals may not always be
inconsistent.[23] However, he goes on to suggest that, in some circumstances, the advancement of educational and competitive goals may reach a point of cross-purposes, [page 177] and their paths may diverge.[24] This article will address the
latter point and will suggest that an optimal educational strategy will, in virtually all
cases, also be an optimal competitive strategy. This is not to suggest that the two are
equally important, but simply to point out that a choice to focus on pedagogy need not
make a team any less competitive in the Moot. In fact, competitive elements may serve
as fuel to further advance the educational experience.

The Rules of the Moot unequivocally describe the primary goal as educational and
relegate competitive elements to a secondary or incidental role.[25] These same Rules,
however, allow faculty advisors or other coaches to help guide the students' early
efforts at analysis, research, and advocacy,[26] and allow teams to engage in practicing
oral arguments with other schools prior to the Moot.[27] These two latter rules -- quite
unique in the world of mooting -- arguably go a long way towards eliminating any
conflict between the educational and competitive goals of the Moot. Instead, the
authors suggest that these goals are entirely complementary.

While the Moot includes many unique features to commend it as an educational experience, this part of the article will focus on two of those specific features. First, the Vis
Rules allow for interaction between coaches and students while the students are analysing
the Moot problem, researching the legal issues, developing their arguments, and drafting
the memoranda on behalf of the claimant and the respondent.[28] Second, the Vis Rules
allow individual teams to engage in 'Pre-Moots' in which they participate in practice moots
against teams from other institutions prior [page 178] to the actual Vis Moot in Vienna.[29]
Each of these unique features provides for exceptional pedagogical opportunities not
typically found in other moots.[30]

The Moot problem provides an opportunity for students to expand their doctrinal legal
knowledge, while developing and applying their analytical, research, writing and advocacy
skills. The rules of most moots prohibit or at least significantly limit the involvement of
faculty or other non-student coaches until the briefing has been completed,[31] thus
significantly limiting the educational benefits that might be achieved during this process.
While such limits might serve to sharpen the competitive process, they would seem
counter-productive when it comes to pedagogy. The early involvement of a faculty member
or other coaching mentor in working with the students can serve to improve the educational
experience in many of the same ways a faculty member's involvement serves to improve
the educational experience in a traditional law school class taught on the common law
model. Moreover, the educational experience provided by the Moot problem can be
extended to a larger body of students by using the problem in the classroom. This
opportunity is further explored in Part 3.1.

Once the student teams have completed their written submission(s), many moots allow for
outside coaching assistance as the teams prepare for the oral competition. However, such
coaching assistance is often limited,[32] and the rules for most moots do not allow students
to practice against teams from other institutions prior to the formal oral competition.[33]
Again, this might represent a reasonable limit if one focuses on the competitive process, but
one that seems to eliminate an outstanding pedagogical opportunity.[34] The coaching
assistance and Pre-Moots allowed under the rules of the this Moot represent further
opportunities for students to extend their analysis of the Moot problem and to develop and
practice their advocacy skills -- all in an environment emphasising the learning experience.
These Pre-Moots can also extend the oral argument experience beyond the limited number
of students able to participate in the Moot in Vienna. This opportunity is further explored
in Part 3.2. [page 179]

By making the most of each of these two unique features of the Vis Moot, a participating
institution can significantly enhance the overall educational value to its students, as well as
the overall institutional benefit. In order to better understand and share the extent to which
various institutions participating in the Vis Moot might be utilising these opportunities, the
authors conducted a brief survey of participants in the Thirteenth Moot.[35] The survey
results are included in the Appendix and will be referenced where appropriate in the
various subsections of Part 3 below.

Students participating in the Vis Moot will sometimes begin the process with little or no substantive knowledge in international commercial law or international commercial
arbitration.[37] These students may also lack any background in comparative law, thus
making the challenge of learning international law and procedure even a bit more daunting.
While participating students are obviously capable of overcoming these [page 180]
challenges on their own (and often do so, to varying degrees), I will suggest in this portion
of the Article that there might be another method that makes more effective pedagogical
use of the Moot and its underlying annual problem.

3.1.1 A brief story of my own course development

During our first experience as co-coaches in the Moot four years ago, Professor Vaughan
and I found ourselves working with just such a group of students who had little, if any,
background in the relevant subject matter. As it turned out, a colleague, Professor Bradford Stone, agreed to help the students early in the semester with an 'ad hoc' overview
of the CISG over a number of lunch hours, while I helped them get up to speed on the basics
of arbitration in a similar manner. The students ultimately did a remarkable job of learning
both while working on the Moot problem, writing briefs, and preparing for the oral
arguments in Vienna. However, at the end of this process, we looked at the toll this had
taken on the students, as well as on us, and said 'there must be a better way to do this.'
Fortunately, our Deans were supportive and gave me the opportunity to develop a three-credit hour [38] law school course [39] built around the Vis Moot problem to be offered the following fall.

The idea of combining a traditional law school doctrinal course with a practical skills based
course came from my earlier experiences at the University of Colorado with an integrated
five credit hour course combining Evidence and Trial Practice.[40] This had been my
favourite course as a law student at the University of Colorado and one of the most fulfilling
as a law professor when I had the chance to teach it some years later at the same school.
I thought that this sort of approach made for a better learning experience in terms of both
doctrine and skills, and I hoped the same thing might happen with a course built around the
Vis Moot problem.[41] The rules seemed to allow and perhaps even encourage this
approach with respect to the team of students participating in the Moot,[42] and the
course would allow more students to benefit from the educational experience than just those
ultimately chosen for the actual Moot team. [page 181]

The fundamental idea of this new course was to provide a doctrinal overview of
international sales law and international commercial arbitration during the first half of the
course, and then to use the Moot problem as the basis for what was, essentially, advanced
practical skills training during the second half of the course. The first half of the class would
end with a traditional exam on the day before the Moot problem was published, and the
second half would culminate with the students' submission (in teams) of written memoranda
in support of the claimant. The timing and structure of such a course (or courses) is admittedly dependent on the academic calendar of each individual institution -- calendars that vary considerably throughout the world. However, the suggested combination of doctrinal theory and practical skills can be achieved in a variety of ways.[43] The key is the purposeful integration of the various doctrinal and practical components as explained below.

3.1.2 The content of the course

My own decision as to course content actually involved two steps, and individual
institutions might want to consider either or both. The first step was the decision to
combine theory and practice, while the second step was the decision to teach the doctrinal
theory of international sales law and international commercial arbitration in a single class.
I will address each in turn here.

Many law schools offer various skills training courses,[44] and one could simply use the
Vis Moot problem as the subject matter of a skills course in research and writing. If one
assumes that the students have other opportunities to learn the relevant legal doctrine
governing international sales law and arbitration, then the course built around the problem
can focus entirely on the application of that doctrinal theory to the factual problem at hand,
and the instructor can focus entirely on working with the students on skills
development.[45] In fact, the survey indicates that some institutions likely take this
approach. The majority of responding institutions offer courses in international sales [page
182] law and/or arbitration,[46] and a little over a third offer a course for credit that
specifically addresses the substance of the Vis Moot problem.[47]

Even if the institution does not offer a course built around the problem, almost half of the
responding institutions award the students academic credit for their work on the Moot
outside of any formal classroom setting,[48] and more than a quarter offer general courses
on moot court or advocacy.[49] The students then work largely on their own to apply (and
perhaps learn in the process) the relevant legal doctrine while also developing their related
skills. This is likely the approach taken in most moots.

The students undoubtedly profit from both the doctrinal knowledge and skills acquired
during their work on the Moot problem -- whatever the approach. In either of the above
cases, however, doctrinal coverage and skills training remain largely separate and/or self-directed by the students. Without the benefit of purposeful curricular integration by a
faculty member, some elements of the extraordinary pedagogical opportunity presented by
the Moot may be lost.

The nature of learning is such that one learns, understands, and remembers far more of what
one actively uses or applies than what one passively reads or hears.[50] It also stands to
reason that the more one separates the educational elements of theory and practice, the
less effective the latter in promoting active learning. When one combines theory and
practice in a single course,[51] the instructor is best able to draw upon recently learned
legal theory in challenging the students to apply that theory to the [page 183] Moot
problem before them.[52] Thus, the combination of doctrinal theory and practical skills
training in a single course would arguably better maximise the educational benefit of the
Moot.[53]

The second question relating to course content involves the question of combining doctrinal
coverage of international sales law and international commercial arbitration in a single
course.[54] The most obvious benefit to doing so in this context is that the Vis Moot
focuses equally on both.[55] However, there are other good reasons as well. The
predominant body of international sales law, as represented by the CISG, and arbitration,
as the predominant method of resolving international sales contract disputes, work
together, hand and glove, to promote international trade.[56] An international commercial
lawyer must be fully mindful of both -- whether at the contract negotiation and drafting
stage [57] or at the dispute resolution stage. For many of the same reasons that these two
distinct subject matter areas provide a perfect combination for the Moot, they also provide
a perfect combination for a doctrinal law school class.

At its core, an arbitration agreement is nothing more than a contractual obligation -- one
that obligates the parties to settle their controversies through a private adjudicative [page
184] process resulting in a final resolution of the dispute.[58] This obligation may be a
conditional one included in the parties' basic commercial transaction, or it may be included
in an agreement drafted after the dispute has already arisen. In either case, the agreement
to arbitrate is largely a matter of contract. As such, arbitration is arguably at least as related
to doctrinal contract law as it is to more traditional forms of public adjudication conducted
by state institutions.

As a crucial element of many contracts, the subject of dispute resolution provisions should
be 'woven into first-year courses in contracts, encouraging law students to consider key
questions [inherent in private dispute resolution]'.[59] The value of integrating arbitration
and contract doctrine would seem even stronger in the case of an advanced course
covering international sales law and arbitration.[60] Advanced law students should be
better able to comprehend and benefit from an integrated approach, and arbitration is even
more important in international transactions.[61] International sales law and arbitration are
also quite teachable together.

My own approach is to begin with an introductory overview of both subject areas and then
move to detailed coverage of the CISG, weaving in coverage of specific relevant
arbitration issues along the way. When we have largely completed our basic coverage of
the CISG, I then shift the primary focus to arbitration, referring back to relevant provisions
of the CISG, as appropriate. In this way, the students are able to gain a basic
understanding of each, independently, while also seeing their interconnectedness.[62]

For example, when discussing Art. 11 of the CISG, which does not require a contract of
sale to be evidenced in writing, one can simultaneously point out that the Convention on
the Recognition and Enforcement of Foreign Arbitral Awards ('New York Convention')
and the UNCITRAL Model Law on International Commercial Arbitration ('Model Law')
do require such a writing.[63] Thus, a signed writing is generally quite important in
international sales transactions -- notwithstanding Art. 11 of the CISG. [page 185]

When addressing questions of validity under Art. 4 of the CISG, one can briefly introduce
the doctrine of separability of the arbitration clause, providing for arbitration in most cases,
even if the contract containing the clause is deemed invalid.[64] Later, when addressing
avoidance under Arts. 49 and 64 of the CISG, one can point to Art. 81 (1), which
essentially adopts the doctrine of separability in cases of avoidance.[65] Thus, when the
course focus shifts to arbitration, and the doctrine of separability is addressed in detail,
along with competence/competence,[66] the students are already familiar with the context
in which it arises, and a difficult analytical construct is made more understandable to
students.

When addressing contractual intent under Arts. 8 and 9 of the CISG, one can remind
students that arbitration is, essentially, defined and driven by the parties' intent. At this
point, I typically introduce the students to a hierarchy of sources of the parties' rights and
obligations, beginning at the top with mandatory rules, followed by specific express
provisions, general express provisions, practices and usages between the parties and within
the trade, and finally default rules. We then compare default rules of the CISG and Model
Law, which can be 'trumped' by the parties whenever they express the desire to do so,
with mandatory rules, which cannot. Once we have established the boundaries (mandatory
rules at the top and default rules at the bottom) we can deal with various distinctions within
those boundaries, such that between general and specific terms. During this process, I
point to arbitration rules as examples of contract terms by reference or incorporation, also
explaining that specific variations from such general references would typically be seen as
better evidence of the parties, specific intent (or that the rules are simply another layer of
default terms, expressed by the parties). I believe the benefits of this approach are twofold.
First, the students are able to look at a hierarchy of contractual intent from two points of
reference -- the arbitration agreement and the broader contract, as a whole. Second,
when we shift the focus to arbitration, I almost never have to answer the question, 'What
is the difference between the UNCITRAL Model Law and the UNCITRAL Model Rules,
and why to we need both?' Or, if I do, it is much easier to answer by reference back to
our earlier discussion of contractual intent.

At some point during the 'contracts' discussion, one will likely want to introduce the
UNIDROIT Principles of International Commercial Contracts (2004) (the 'UNIDROIT
Principles') as a potential source of international contract law. I typically point out the
UNIDROIT Principles as a potential source of 'general principles' when addressing the
interpretation of the CISG under Art. 7, and then suggest that parties might even want to
consider adopting them as either primary or secondary sources of governing law. This is
a great opportunity to introduce the students to the Preamble of [page 186] the
UNIDROIT Principles, which, among other things, expressly suggests that parties choose
arbitration over court adjudication based on its greater deference to party choice of
governing law.[67]

I could go on with other examples of integration of the materials, but I hope the foregoing
list has convinced the reader that both subjects can effectively be taught in a single
class.[68] If so, then one might want to consider taking both the first and second
integration steps that I have taken: (1) integrating the theoretical doctrine with a skills
course built around the problem; and (2) integrating both contract and arbitration theory
into the doctrinal coverage.

While this Article takes the position that a fully integrated course will best maximise the
educational benefits of the Moot, I also recognise that others may reasonably disagree or
may, for a variety of good reasons, be unable to offer such an integrated course. However,
some of the elements of an integrated course may nonetheless prove useful to anyone
building a law school course around the Moot problem -- whatever the overall content of
such a course.

3.1.3 Some thoughts on implementing the course

If one agrees that a course built around the Vis Moot problem is a valuable pedagogical
enterprise -- whatever the level of doctrinal integration -- then the next issue to address
is the details of such a course. What follows is a description of the course I developed,
which I provide solely as a source of potential ideas.[69] There are likely many different
ways to teach such a course, some of which would be more effective than those I have
employed. In fact, my successor at Stetson has arguably [page 187] 'improved' on the
course I left behind in a variety of ways. Thus, if any of these ideas sound interesting, I
encourage you to use them in any way that you may find useful.

The course allows for enrolment of up to 24 students.[70] Any student interested in
participating in the Vis Moot is required to enrol, but it is also open to students that are
simply interested in taking the course.[71] By opening the course to a larger group of
students, the educational benefits derived from the exercise are made more broadly
available. This also helps, to some degree, in addressing the challenge by some that the Vis
Moot is excessively expensive considering the number of students receiving its
benefits.[72] By spreading the cost over a greater number of beneficiaries (even partial
beneficiaries), the cost per benefited student is reduced.

The first half of the course is devoted to a doctrinal survey of international sales law and
arbitration [73] and concludes with a traditional law school exam on the Thursday before
the Vis Moot problem is distributed.[74] The most significant challenge in this first half of
the course is the amount of material to be covered,[75] and the key to getting through it
is to maintain a 'survey' level approach. If the students understand the basics, particularly
the underlying general principles, then they will be well prepared to research and analyse
specific detailed issues that arise -- whether those issues arise in the Moot or later in the
practice of law.

The second half of the course is entirely devoted to the students' work on the problem. The
students organise themselves into groups [76] and work together for the remainder of the
semester, with this group dynamic serving many of the same purposes as the group
structure of a team in the Moot itself.[77] From this point forward, the students primarily
drive the class, with the instructor serving largely as facilitator. In class, the students (1)
break down and analyse the issues presented by the problem; (2) make presentations to
their classmates summarising and analysing their most important research results; (3)
discuss the need for additional fact discovery in the form of [page 188] clarifications;[78]
and (4) engage in mock oral arguments of the issues.[79] Outside of class, the students are
expected to work in their respective groups to research and write the memoranda for the
claimant,[80] along with of course preparing for their 'in class' exercises.

The instructor serves an important role in facilitating the process through continuous
questioning -- very much on the classical 'Socratic' model [81] -- while the work itself is
done entirely by the students. The instructor can also provide important feedback to the
students -- encouraging their effective efforts and raising further questions when they seem
to be veering too far off track.[82] While this is largely a collaborative process on the part
of the students, it is also a graded one. The students receive individual grades for their
respective 'in class' participation, and group grades for their respective written
memoranda.[83]

The activities described above include all of the students in the class. However, there is one
additional activity that is limited to those students hoping to be selected for the team that
will ultimately travel to Vienna and participate in the Moot. Relatively late [page 189] in
the semester, these students compete in oral argument tryouts, separate and apart from the
'in class' mock oral arguments. Based on these oral arguments, as well as each student's
performance in the overall class, a team is selected.[84] Once the final memoranda have
been submitted for course 'grades', the students selected for the team work collaboratively
to assemble a final competitive claimant's memorandum for submission as part of the
Moot.[85]

For the remainder of the Moot, this team works together much like any other team in the
Moot. However, they carry with them much of the collective wisdom of their classmates,
and their classmates carry with them many of the educational benefits provided by the
Moot.

An expressed 'purpose of the Moot is to develop the art of advocacy in international commercial arbitration proceedings.'[87] In order to better understand this particular
educational mission of the Moot, a basic discussion of 'advocacy' is helpful. Advocacy is
defined as 'the act of pleading for or actively supporting a cause or proposal,'[88] typically
pleading 'the cause of another before a tribunal or judicial court.'[89] The idea of any moot
court competition is to advocate the cause of a fictitious client, and the essential
requirement for such advocacy is persuasion. Persuasion is the key.

Before any student can be prepared to argue, whether it is before a judge, a panel of
arbitrators, professors, lawyers, or peers, he or she must have a basic understanding of
how to persuade. Many are born with a natural gift of persuasion, but all can learn to
persuade -- even those lucky enough to possess a natural gift can improve and refine that
gift. Once the basic concepts and skills of persuasion become second nature to the student
through preparation and practice, the Pre-Moot is particularly beneficial in refining these
skills before the final stage of the Moot, the oral hearings in Vienna. This part will address
the events leading up to the oral 'competition', which provide [page 190] an opportunity
to maximise the pedagogical benefits of the Moot with respect to oral advocacy.

3.2.1 Advocacy and the art of persuasion

Law students can and should learn the art of persuasion -- an art that must be used in any
venue, in any country, and before any tribunal if one is to serve as an effective advocate
for one's client. To persuade, effectively, is to clearly articulate a position. To be
persuaded, a tribunal must of course understand the advocate's position and cannot do so
unless it is clearly stated. Effective persuasion before a tribunal is also more like a
conversation than a speech.[90] A tribunal may ask questions, requiring a dialogue
between counsel and tribunal, and even a silent tribunal is more likely to be persuaded by
a respectful conversational style than by a monotonous and perhaps demeaning lecture.

Of course one also requires an effective delivery vehicle for this clear, conversational
persuasion, and perhaps the single most effective vehicle is the presentation of one's
advocated position as a story.[91] The advocate pleads his or her client's cause by
presenting the most interesting and compelling story to the audience [92] -- in this case,
the tribunal [93] Thus, in order to persuade, the student must learn to tell a complete and
compelling story of the case. However, 'the tongue cannot paint what the eye cannot
see.'[94] The only way to tell such an effective story is, first, to know and understand the
law and, second, to know, and almost live, the facts of the pending case.[95]

This persuasive, clear, and conversational story does not simply recite the law and facts
-- the idea is to wrap the law around the facts. One begins by explaining in simple terms
the underlying business transaction and laying a basic, common sense foundation for the
story.[96] Upon this solid foundation, the story gains traction with the [page 191] addition
of interesting and important details, as well as relevant legal authority explaining why such
details favour the advocate's cause.[97]

It often helps to begin with the least controversial points of the argument, building rapport
and trust with the tribunal before moving on to the more controversial points. Of course,
controversial points cannot be avoided for long and must be addressed directly and
confidently, or the failure to do so may cause an advocate to lose this same rapport and
trust. A successful advocate must learn to develop and maintain credibility with the tribunal,
whether it is in a moot or in a real case.

Persuasion, advocacy, and lawyering are all ultimately about communication. Moot court
programs in law schools have roots in debate, which is all about communication, and
mooting is a classic way of teaching students these essential skills.[98] The majority of the
institutions participating in the survey provide some form of academic credit in recognition
of the educational value of the Vis Moot experience and mooting, generally.[99] Among
those institutions providing academic credit, two-thirds provide credit for the students'
participation in the Moot, separate and apart from any formal or structured class.[100]
Over half of these institutions provide credit for a course focused specifically on the Moot
problem, and almost half provide credit for a course in mooting or advocacy
generally.[101][page 192]

There are three aspects of communication: content, structure and style.[102] Content
includes the substance of the advocates' argument -- the facts and the law. When many
of us think of legal argument, it is content that first comes to mind. In fact, it is the content
of the communication that will typically decide real cases.[103] However, content may be
misunderstood or lost without structure and style.

Structure includes the use of roadmaps and signposts to inform the listener about what to expect and how to expect it. Without structure, the importance or relevance of a
particularly important detail may be completely lost in the torrent of information provided
to the listener. Style, or non-verbal communication, may be the most significant of all
three.[104] Style involves the delivery of the communication -- body language, facial
gestures, speech inflections, pace, and eye contact, to name just a few. If an advocate's
body language is distracting, or pace of speech too rapid, then again the content, no matter
how sound, may be lost. However, a well-structured argument, complete with clear and
distinct signposts, delivered with appropriate pace and emphasis, while engaging the eyes
of the listener, will almost certainly convey the content of the argument to the mind of the
listener.

Some have suggested that mooting may focus too much on style (or style and structure),
as opposed to substance (or content).[105] In deference to competitive fairness, the
arguments of the students are judged not on the merits, but on their effectiveness, given the
substantive circumstances presented.[106] At least one critic has suggested that this
approach to competitive judging completely disconnects the mooting process from the real
world and renders it largely ineffectual in teaching students practical advocacy skills.[107]
One problem with this argument is that it may prove too much. If the complete substance
of a dispute were easily apparent to all, then we would have no need for advocacy or
advocates. However, substance is often subject to reasonable debate, and it is often the
'close cases' that end up before real [page 193] tribunals.[108] In close cases, style may
very well matter -- not because it is more important that substance, but because style is
the communications vehicle through which the tribunal comes to understand the substance.

Moreover, success in real world advocacy is not measured simply by winning and losing
on the merits. Success in rhetoric includes two measures: (1) victory, the external end of
rhetoric; and (2) 'whether the rhetorician makes the best possible argument on behalf of
a particular position', the internal end of rhetoric.[109] This internal end may be important,
in and of itself, particularly when one considers the fact that 'victory' may take various
forms and over various time frames. A judicial dissent generated as a result of the effective
rhetoric of a 'losing' party may eventually become a majority position -- in effect, a
delayed victory.[110] In addition, the very foundations of common law jurisprudence
depend on effective advocacy on the part of both sides -- the winner as well as the
loser.[111] In short, mooting serves a valuable educational purpose even if it does focus
predominantly on the internal end of rhetoric rather than the external result.

In mooting, students must focus on both substance and style. The substantive content of
the presentation is course crucial.[112] Without content or substance, structure and style
cannot carry the day -- not even in mooting.[113] While the decision on the merits is not
controlling in mooting, the students' use of the available facts and law will be -- just as it
often is in a real life close case. Once the student has marshalled the relevant facts and law,
he or she must communicate them effectively. This is where structure and style become
important, particularly in the context of international dispute resolution, and particularly in
the context of the Vis Moot.

In the Moot, students will typically make presentations to arbitrators from a variety of
different legal and cultural backgrounds. Many of these arbitrators will not be native English
speakers, and even those who are may speak a version of English that may sound
somewhat foreign to another English speaker.[114] In such an environment, the [page
194] importance of style is often elevated, perhaps even above substance -- not because style is more important, in and of itself, but because one often cannot convey 'substance'
without a certain amount of 'style'.

For example, one of the most obvious style issues involves speaking pace. A native English
speaker may speak at rapid pace, perhaps even challenging for another native speaker to
follow. For a non-native speaker, this rapid pace may inhibit communication of substantial
portions of the student's substantive argument. It is as if the substance was never argued,
even though it arises from an ineffective style. Another favourite topic of advocacy coaches
is 'eye contact'. While we may often joke about this, its importance is arguably quite real.
From the arbitrator's perspective, it is simply easier to remain engaged and focused on the
argument of a person with whom you are making eye contact. When following a complex
argument, perhaps in a second or third language, such an engaged focus may make the
difference between understanding and missing the student's point. Eye contact may also
enhance a student's credibility with the arbitrators.[115] From the student's perspective,
it is important to look the arbitrators in the eye for signs of understanding or confusion, so
that the student may attempt to adjust his or her presentation accordingly.

In each of these examples, the style of communication may substantially affect the
substance of what is communicated to the listener. In evaluating the effectiveness of
communication, we know that what the listener hears is far more important than what the
speaker says -- whether in the Moot or in front of a real life court or arbitral tribunal. The
elements of style cannot and should not be eliminated from the criteria for judging student
performance in the Moot, because they are an important part of real life communication
and an important part of the educational benefits of the Moot.

Ultimately, all of the students' efforts to prepare for the oral rounds in Vienna are likely to
provide these students with an important educational benefit. However, the extent of this
benefit is significantly enhanced when these efforts are aided by a coach or faculty member,
who can provide guidance in advocacy and the art of persuasion. A brief article such as
this one cannot hope to provide an extensive treatise on advocacy, but instead serves
simply to suggest its importance as a legal skill to be learned and some of the opportunities
for such a learning experience provided by the Moot. The Vis Pre-Moots substantially
enhance and expand these opportunities.

3.2.2 Learning advocacy through pre-mooting

The Vis Moot is unique in that it allows and even encourages pre-moots, or practice moots
against other teams.[116] Other moots typically do not allow for such an opportunity.[117]
By allowing for pre-mooting, the Vis Moot provides for far more opportunities for
participating students to develop their advocacy skills than those provided by internal team
practices. Pre-mooting also allows for more individual [page 195] students to share the
experience of participating in a moot arbitration with students from other schools,
countries, and legal systems. Together, these pre-mooting opportunities expand the
educational opportunities astronomically.

A pre-moot, as the term is used here, would include any meeting of two or more teams to
conduct moot arbitrations addressing the subject matter of the current Vis Moot, occurring
prior to the official oral rounds in Vienna [118] and providing for some sort of constructive
feedback for the students involved. Our survey indicates that an overwhelming majority of
the teams participating in the Vis Moot last year also engaged in a substantial number of
pre-moots. Seventy-nine percent of the teams participated in at least one pre-moot.[119]
Of those teams participating in pre-moots, 78% met at least three other teams, and 41%
met at least seven other teams, with 74% attending multiple pre-moot events, and 17%
attending five or more such events.[120] Eighty-nine percent of these teams met at least
one team from another country, thus engaging in an international pre-moot.[121] Based on
this survey, one can reasonably conclude that pre-mooting has become a very significant
element of the overall Vis Moot experience for most teams.

Most of this pre-mooting activity is non-competitive in nature. Sixty percent of the teams
participating in pre-moots last year engaged only in non-competitive events.[122]
However, there are also a significant number of competitive pre-moots. Fifteen percent of
the teams participated only in competitive events, and 25% participated in both competitive
and non-competitive events.[123] Both competitive and non-competitive pre-mooting is
undoubtedly valuable from an educational perspective. However, the distinctions between
them are potentially significant, so each will be addressed in turn.

A competitive pre-moot ultimately produces a winning team or teams, whether from paired
matches, or individual team scoring, or some combination of the two. In one example, a
group of teams might engage in a series of elimination matches, with winning teams meeting
other winning teams and losing teams meeting other losing teams.[124] In another example,
a group of teams might first engage in a series of scored rounds, with the teams receiving
the highest scores then moving on to a series of elimination rounds to determine an ultimate
victor -- much like the oral rounds in the [page 196] Moot, itself.[125] These competing
teams are afforded an excellent opportunity to practice and develop their advocacy skills
in moot arguments with other teams, often from other legal backgrounds. The teams also
have an opportunity to learn how their current level of advocacy measures up against other
teams in the views of the participating arbitrators. However, the selection of winners in a
head-to-head competition, as well as the scoring of performances to determine which
teams advance to the elimination rounds, necessarily involves the implied designation of
losers.

One of the challenges in a competitive pre-moot is to avoid the potential negative impact
on the students of failing to 'win' -- an impact that will of course be felt by all but the
victor, and may be felt quite acutely by teams repeatedly failing to win. Failing to win a
competitive pre-moot is also quite different from failing to win in the Moot itself. In the pre-moots, the students are attempting to prepare for the oral rounds in Vienna, and the
development of their self-confidence is a huge part of that preparation. The implications of
failing to win in a pre-moot may harm that self-confidence.[126] Nor are the competitive
elements of a pre-moot necessary to fuel its pedagogical benefits. The students still have
the Moot itself to do that.[127] The competitive elements of the Moot itself are an
important part of the overall experience, and the sting of defeat is easily overcome in
Vienna.[128] Thus, one might at least want to consider carefully the value of adding a
competitive element to pre-mooting by thoroughly weighing its additional benefits with its
additional risks.

In a non-competitive pre-moot, the students present their arguments in the normal fashion,
and are provided with a critique after each round,[129] but no winner is ever declared.
The non-competitive pre-moot essentially provides a forum for participating in a mock oral
argument with another team in front of an arbitral panel, receiving constructive feedback,
improving ones' arguments, and learning to be a better overall advocate.[130] A non-competitive pre-moot may in fact provide an optimal educational [page 197]
environment.[131] The students already have plenty of competitive motivation provided
by the actual Moot to follow,[132] but they are able to focus more squarely on learning
to be better advocates during the pre-moot.

The lack of any burning desire to come out' on top' may also help foster collegiality and
openness in sharing ideas for making the strongest arguments on various issues.[133] This
interaction between the students is often one of the most effective educational experiences
in the entire Moot -- especially when the interaction includes students from different
countries and legal backgrounds. A non-competitive pre-moot may also be easier to
organise at an earlier stage of the students' preparation. I think most coaches would be
hesitant to bring their teams to a competitive event until the students had spent substantial
time preparing and polishing their oral arguments. However, there may be significant
learning opportunities provided by practice rounds with other teams held quite early in the
process, while the students are still in the process of developing their arguments. A non-competitive early pre-moot may provide such an opportunity.[134] Of course each team
will need to weigh its own goals in determining whether to participate in competitive pre-moots, non-competitive pre-moots, or both. However, from an educational perspective,
it would seem that a non-competitive event provides the greater overall benefits.

Pre-moots also provide some additional valuable opportunities.[135] One of the most
important benefits of the Moot is the opportunity to meet and interact with other students,
faculty and arbitrators from all over the world -- all of whom share a passion for
international commercial law and arbitration and a common experience of working through
the substantial challenges of the current year's Moot problem.[136] While the oral rounds
in Vienna unquestionably present the broadest and most extensive opportunity for such
social interaction, a pre-moot arguably presents the most intimate one. In a pre-moot,
students may also have an opportunity to meet and interact with [page 198] other
students, faculty, and arbitrators from other countries and legal backgrounds -- but in a
much smaller group and perhaps in a more relaxed environment. While the pre-moot
experience could never replace the' Vienna' experience,[137] it certainly provides a
valuable and complimentary one.

Pre-moots can also provide an opportunity for broader participation.[138] In many cases.
a team will include members that, for various reasons, may not be able to argue in Vienna.[139] However, pre-moots are open to anyone. There is no requirement that any individual who participates in a pre-moot must argue in Vienna, and, depending on the
location of the pre-moot, the institution may be able to afford to send more students to the
pre-moot than it can afford to send to Vienna. Pre-moots can thus be used to extend the
full mooting opportunity to a broader number of students.

Pre-moots have unquestionably become an important part of the overall educational
process provided by the Moot. They may be used to deepen the educations experience
of those who will argue in Vienna, and may also be used to make this educational
experience available to a larger group of students. They also undoubtedly help to prepare
students for the ultimate competition in Vienna -- which brings us finally to the broader
question of the interaction between the pedagogical and competitive elements of the Vis
Moot.

The authors would submit that the competitive aspects of the Moot are a crucial element
of its pedagogical success -- much in the same manner that law school exam or other
graded performances are a crucial element of the pedagogical success of typical law school
course. While the exam or grade itself may be of questionable value or reliability,[140] its
role in spurring student efforts in the educational endeavour seen clear. Virtually anyone
who has ever taught a law school course has likely heard student ask the question, 'Will this be on the exam?' Whether we like it or not, law school exams provide a significant
catalyst in fuelling the efforts of most students to work harder to master legal doctrine than
these students would absent such exams. In similar fashion, the competitive elements of the
Vis Moot undoubtedly provide a [page 199] catalyst in helping to fuel the extraordinary
efforts of the students who participate in the Moot.[141]

If one wishes to maximise the educational value of such a catalyst, the key is to structure
the educational process and the catalyst such that 'shortcuts'[142] are unproductive.
Presumably, an instructor will structure a law school course in a manner to achieve certain
pedagogical goals. If the student believes that the most efficient path to exam success is to
follow the instructor's structure, then the student will likely follow that path, hopefully
achieving the instructor's goals. Thus, the best way to achieve the instructor's pedagogical
goals is to structure the course and the examination in such a manner that the latter
encourages the sought after behaviour in the former. The structure of the competitive
elements of the Vis Moot achieves exactly this purpose, thus arguably 'mooting' any debate
between pedagogical and competitive strategies.

For example, while examining the facts, students are afforded the opportunity to ask for
clarifications. Of course, all students receive the same clarifications, so some might be
tempted to 'shortcut' the process and, simply wait for the answers. However, a team
seeking a 'competitive' edge, will search the facts high and low, for something subtle that
might make a difference in the effectiveness of their arguments, but which might escape the
less focused attention of others. Thus, the students are encouraged to engage in a
thoughtful and detailed examination of the facts, a valuable skill for any lawyer.

Students are required to submit written memoranda on both sides of the issues.[143] This
requires the students to analyse the Moot problem in far more depth than if they only had
to construct the arguments on one side, thereby encouraging a deeper level of analysis and
a deeper level of understanding.[144] In fact, this aspect of the Moot [page 200] provides
an incentive for students to look at both sides of the issues very early in the problem. If a
team has to do it anyway, better earlier than later so that they can use their analysis to their
advantage in the first memoranda.

Once the memoranda are completed, the competitive elements of the Moot also encourage
students to prepare to orally argue both sides of the issues. Students that do not are not
eligible for individual oral awards.[145] As with the written memoranda, this competitive
requirement of learning both sides of the issues promotes the pedagogical goal of further
developing the students' analytical abilities. We have watched students as they worked
diligently to overcome a particularly challenging argument on the other side of the issue and,
as soon as they have succeeded, watched them shift gears and do the same again from the
other side. By engaging in this process, the students are learning to perform the sort of 'in-depth' analysis performed by the best of the legal profession.[146]

Perhaps one might argue that, despite all of this, a team might decide simply to go through the motions during the preparation of the memoranda and focus entirely on polishing their
deliveries of scripted oral presentations in hopes of competitive success in the oral
rounds.[147] If so, then this might be just the sort of 'shortcut' that could undermine the
value of the competitive catalyst and dilute the educational value of the process. However,
there are plenty of arbitrators during the oral rounds at the Moot that will almost certainly
derail such an approach. While some arbitrators are [page 201] relatively silent during
arguments, irrespective of a student's demonstrated oral skills, many others are quite
active. A strong oral advocate is often interrupted with increasingly challenging questions,
perhaps in an effort to find out just how strong an advocate he or she is. While some such
questions might reasonably be anticipated, many will not be. Ultimately, there is really no
substitute for a thorough grounding in the facts and the law -- not just the specific legal
rules at issue, but also a broad comparative understanding of the jurisprudential
underpinnings of those rules.

In short, the educational and competitive elements of the Moot are entirely consistent, with
the latter supporting the paramount importance of the former. If a student seeks
competitive success in the Vis Moot -- and I am convinced that most do on some level
-- then the student must do the necessary work, thereby deriving the intended educational
benefits of the Moot.[148] The best evidence that this process actually takes place is the
legendary efforts of the students themselves, which has recently been celebrated in
song.[149] The structure of the Vis Moot provides both the educational framework and
the competitive catalyst to spark the educational process.[150] All we have to do as
coaches is to try to make the most of both.

Vis Moot team coaches come in many forms -- current and aspiring law school
professors, practicing lawyers and arbitrators, and even current law school students. All
of us, however, are ultimately acting together as teachers and mentors to the next
generation of international commercial lawyers. As such, there is much to be said for an
ongoing collaboration with respect to our teaching and mentoring efforts to make the most
of the wonderful educational experiences provided by the Moot. In this Article, the authors
hope to have made a small contribution to that collaborative effort, and we look forward
to continuing collaboration and fellowship with all of you in the months and years to come.
[page 202]

* Assistant Professor of Law, Touro College Law Center. J.D., University of Colorado
School of Law 1994.

** Director of Stetson University College of Law's Tampa Law Center; Co-Acting
Director of Legal Research and Writing; Assistant Professor of Legal Skills; Faculty
Advisor to the Moot Court Board. J.D., Stetson University College of Law 1991.

We would both like to thank all the many individuals with whom we have enjoyed the
pleasure of sharing the unique experiences of the Willem C. Vis International Commercial
Arbitration Moot -- especially the students. We would also specifically like to thank
Professor Eric Bergsten for his helpful comments and his willingness to send out our survey
to Moot participants on our behalf and Brooke Bowman (Assistant Professor of Legal
Skills at Stetson) for her valuable editing assistance.

The survey questions relating to academic credit for participation in the Moot were
inspired, in part, by an earlier survey of US participating law schools, conducted by Lynn
Fraser, Adjunct Professor, Georgetown University Law Center, and co-coach of the
Georgetown team.

Any credit related to Moot? -- Did your institution award academic credit to students related to their participation in the Moot?

The number of 'yes' responses are shown as a percentage of the total responses.

The following subsidiary questions were only to be answered by those answering 'yes'
to the primary question above. Each was to be answered independently, such that
some teams answered 'yes' to more than one of the subsidiary questions.

Moot problem focused class? -- Do students receive credit based on their enrolment and
participation in a course that specifically addresses the substance of the Vis Moot problem,
itself, for the current year?

The number of 'yes' responses is shown as a percentage of only those institutions
answering 'yes' to the primary question.

Average % of annual credits -- If you answered 'yes', what percentage of a student's typical annual curricular credits does this credit represent?

The average amount of credit awarded -- by institutions awarding such credit -- is shown as a percentage of average annual credits awarded to students seeking a law degree.

Moot participation without class? -- Do students receive credit for their participation in the Vis Moot, separate and apart from their enrolment in a class (if any) that specifically
addresses the subject matter of the Vis Moot problem for the current year (e.g., credit for independent study or 'moot court' credit)?

The number of 'yes' responses is shown as a percentage of only those institutions
answering 'yes' to the primary question.

Average % of annual credits -- see same entry above.

General mooting/advocacy? -- Does your institution provide a course for credit related to moot court or advocacy, generally, separate and apart from any specific moot?

The number of 'yes' responses is shown as a percentage of only those institutions answering 'yes' to the primary question.

Average % of annual credits -- see same entry above.

Subject Matter Courses

ICA course coverage? -- Does your institution currently offer any academic course for credit, which is focused substantially on International Commercial Arbitration (including substantial coverage of: (1) the UNCITRAL Model Law; and (2) the UNCITRAL Model Rules and/or a representative survey of international commercial arbitration rules)?

The number of 'yes' responses are shown as a percentage of the total responses.[page 204]

CISG course coverage? -- Does your institution currently offer any academic course for credit, which is focused substantially on International Commercial Law (including substantial coverage of the CISG)?

The number of 'yes' responses are shown as a percentage of the total responses.

No course covering either? -- There was no separate question asking this.

The number of institutions responding 'no' to each of the primary questions above is shown as a percentage of the total responses.

Courses covering both? -- There was no separate question asking this.

The number of institutions responding 'yes' to each of the primary questions above is shown as a percentage of the total responses.

The following subsidiary question was only to be answered by those answering 'yes' to both of the primary questions above.